Western Advertising Co. v. Star Pub. Co.

• Decision Date: 14 December 1909
• Parties: WESTERN ADVERTISING CO. v. STAR PUB. CO.
• Court: Missouri Court of Appeals

123 S.W. 969

WESTERN ADVERTISING CO. v. STAR PUB. CO.

St. Louis Court of Appeals. Missouri.

December 14, 1909.

Rehearing Denied January 4, 1910.

1. CONTRACTS (§ 164) — CONSTRUCTION — CONSTRUING INSTRUMENTS TOGETHER.

Several instruments, if made at the same time, between the same parties, and in relation to the same subject-matter, will be read together as one contract, even in the absence of any reference in one to the other, and though the parties are not the same, if the contracts were known to all the parties, and were delivered at the same time to accomplish an agreed purpose.

2. CONTRACTS (§ 164) — CONSTRUCTION — CONSTRUING INSTRUMENTS TOGETHER.

A lease to the plaintiff with a clause for the benefit of the defendant, who was also a tenant of the lessor, was made several months before the advertising contract sued on, which did not refer to the lease, and specified that no verbal conditions would be recognized, and that all stipulations were embodied in it. The contracts were known to all the parties, the officers of the lessor and the defendant being the same, and defendant, though not a party to the lease, accepted the benefit, but did not claim it until after it was in default. Held, that the instruments could not be read together as one contract.

3. APPEAL AND ERROR (§ 1011) — REVIEW — QUESTION OF FACT.

Findings of the trial court on conflicting evidence will not be disturbed on appeal.

4. EVIDENCE (§ 87) — PRESUMPTIONS OF FACT — REBUTTAL.

A rebuttable presumption, or a presumption of fact which merely amounts to an assumption of what may be true as indicated by probabilities and the rationale of experience, will not be permitted to contradict or overcome facts actually proved.

Appeal from St. Louis Circuit Court; Robt. M. Foster, Judge.

Action by the Western Advertising Company against the Star Publishing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Action against defendant to recover $1,266.66 claimed to be due for advertising space in street cars. On January 15, 1904, the plaintiff, Western Advertising Company, leased from the Star Building Company 10 rooms in the Star Building, in St. Louis, for a term of five years from January 15, 1904. A clause in this lease is as follows: "Of the rental hereinabove specified to be paid, six hundred ($600) dollars thereof shall be paid yearly in street car advertising by the lessee of the business of the lessor's tenant, the Star Publishing Company." A written contract was afterwards entered into between plaintiff and defendant, on March 31, 1905, by the terms of which defendant agreed to pay plaintiff at the rate of $633.33 per month, on the tenth day of each month, for 3 months, commencing April 1, 1905, for the space. Another contract, of date August 15, 1904, between the same parties for advertising space for 12 months from October 15, 1904, was in force on March 31, 1905, which then had some 6 months to run, and which contract it was specified in that of March 31, 1905, should "stand suspended from April 1, 1905," until a note of the defendant had been paid, after payment of which note the contract of August 15, 1904, should be canceled. In the contract sued on, as well as in that of August 15th, it is provided that it should not be binding unless approved by the president of the plaintiff, and that, "no verbal conditions recognized. All stipulations must be embodied herein." The note above referred to was subsequently paid and the contract of August 15, 1904, accordingly canceled, so that at the date of institution of this action the only contracts out and unsettled were the lease of January 15, 1904, between the Star Building Company and this plaintiff, and the advertising agreement of date March 31, 1905, between plaintiff and defendant. There was $600 rental due or to accrue on the lease, and $1,266.66 due on the advertising contract. Defendant had apparently paid one month's installment on the March, 1905, contract in cash. Some time in July, 1905, the advertising contract having been before then duly fulfilled on the part of plaintiff, by having done the advertising contracted for, and it having demanded, some time before then, payment for the two months' advertising, defendant tendered plaintiff a check for $666.66, and a receipt for rent for the rooms in the Star Building, the receipt being signed by the Star Building Company. Plaintiff refused the tender, insisting on payment of the whole $1,266.66 in cash. This receipt is dated July 15, 1905, and reads: "Received of Western Advertising Company six hundred dollars in street car advertising as per terms of lease for current year." Defendant claimed in its answer and at the trial that the agreement in the lease relating to the allowance of rent on account of advertising covered the advertising done under these contracts, and that it (defendant) had a right to satisfy $600 of the amount due under the advertising contract by the rental receipt tendered. Tender of a receipt for that and of the $666.66 in check having been refused, defendant tendered in court and deposited with the clerk there $666.66 and declared its willingness to credit the remaining $600 on the rental account. No point is made on the tender not being a legal tender, both parties treating the check of defendant as perfectly good.

At the trial, which was before the court, a jury being waived, evidence was introduced by defendant, tending to prove that in a conversation between Messrs. Hill, representing plaintiff, and Mr. August Frank, representing defendant, held after the execution of the contract of August 15, 1904, one of the Messrs. Hill had told Mr. Frank that defendant could not take all of the rental called for in the lease for the four years out of the whole advertising bill, but that it could "only take for each year one year's — only one year (rent) will apply during the year on this (the advertising) order, not the whole of the four years." This evidence was objected to for various reasons, among others, that the advertising contracts specified that "no verbal conditions" would be recognized, and that all the stipulations of the contract were embodied in it; that all agreements were merged in the written contract and could not be waived by parol. This same objection was practically interposed when the lease was offered in evidence by the defendant, with the further objection, that the advertising contract was complete in itself, and that the lease was a distinct and separate contract, and the provision in it as to advertising had nothing to do with the advertising contract here sued on. The court admitted this testimony subject to the objection and with the statement that he would determine afterwards as to its competency, relevancy, and effect. On the part of plaintiff, testimony was given tending to show that no such conversation as testified to by the witness for defendant had ever taken place, the Mr. Hill, who was quoted by defendant's witness, Mr. Frank, denying in unequivocal terms that he had ever had any such conversation with Mr. Frank or any conversation in which anything of the kind had occurred. There was some testimony tending to prove that the plaintiff, in 1904, had done advertising for defendant to the amount of $600 or more, under the advertising clause in the lease, which testimony was contradicted by defendant. There was also some testimony tending to prove that plaintiff had offered and stood ready and was always able to do the amount of advertising referred to in the lease, outside of that called for in the contracts, but that defendant had not, in the following years, demanded it. Apart from the above testimony, the testimony in the case was confined to the advertising agreements and the lease before referred to, the receipt and correspondence making and refusing the tender. The fact of the tender of the $666.66, and of a receipt from the Star Building Company for $600 on account of the rent was in evidence.

At the conclusion of the testimony, the court, at the request of the defendant gave three declarations of law. The first was to the effect that if the court, under other instructions given, found in favor of the defendant, and that prior to the institution of the suit defendant was ready, willing, and offered to pay plaintiff the sum of $666.66, but the plaintiff refused to receive the same, and that the defendant prior to the trial of the cause had tendered and paid into court for the use and benefit of plaintiff the sum of $666.66, then the finding and judgment of the court should be in favor of plaintiff for the $666.66, without interest and against plaintiff for costs. The second instruction was to the effect that if defendant's order for street car advertising of August 15, 1904, was given and received in contemplation of the provisions of the lease of January 15, 1904, the court would be justified in presuming, in the absence of evidence to the contrary, that the modification of the order of March 31, 1905, was subject to the same understanding, and that if the court, under the other declarations of law and the evidence, and under this declaration, found in favor of defendant, the finding should be only for the excess of advertising done over the amount defendant was, under the terms of the lease, entitled to have done during 1905. The third declaration was to the effect that under the terms of the lease of January 15, 1904, the defendant was entitled to receive during each year of the leasehold period $600 of street car advertising, "and in the absence of evidence to the contrary, subsequent orders given by defendant for such character of advertising will be presumed to have been given by defendant and received by plaintiff in contemplation of the service agreed to be rendered thereunder." No declarations of law were asked by plaintiff, the above being the only ones given. After having had the case under advisement, the court found in favor of pl...